Shanti PICCALO, Plaintiff-Appellant,
v.
Gillian NIX, Defendant-Appellee.
Docket No. 212752.
Court of Appeals of Michigan.
Submitted November 13, 2000, at Detroit. Decided May 15, 2001, at 9:10 a.m. Released for Publication July 31, 2001.*903 Schreier & Weiss, P.C. (by Jay B. Schreier), Royal Oak, for the plaintiff.
Francis A. McCarroll, Grosse Pointe Park (Gross, Nemeth & Silverman, P.L.C., by Steven G. Silverman, of Counsel), Detroit, for the defendant.
Before ZAHRA, P.J., and HOOD and McDONALD, JJ. *901
*902 HOOD, J.
Plaintiff appeals as of right, following a jury trial, from a judgment of no cause of action. We reverse and remand for a new trial.
On July 4, 1996, defendant hosted a party at her residence. Defendant purchased a keg of beer[1] and food for the event. The event was attended by defendant's son and his friends, including members of the son's band. The majority of the individuals who attended the party, including plaintiff, were under twenty-one years of age. Defendant testified that she and members of the band told individuals attending the party that the beer was for individuals who were of legal drinking age. In addition to alcohol on the premises, various witnesses testified that they brought marijuana and "magic mushrooms" to the party for their own personal use.[2] The location of defendant's home provided limited parking space, so numerous individuals parked across the street at a senior citizen apartment complex. The police received a complaint from residents of the complex about a disturbance. The police found men, including Michael Burnham, by his van in the parking lot of the senior complex. There were two cups and a bottle of beer in the van, as well as drug paraphernalia. The men had an "X" on their hands. They indicated that they had been drinking at defendant's residence, and the "X" on their hands indicated that they had paid $5 for beer.[3] Police officers opined that Burnham was intoxicated. They allegedly walked the men back to defendant's residence and spoke to her regarding the condition of the men. Defendant allegedly told police that she would ensure that intoxicated individuals were driven home by designated drivers or stayed at the residence. The keys to Burnham's van were allegedly given to defendant. Some witnesses testified that, after the visit from the police, defendant lectured party attendees regarding their conduct and collected keys to vehicles. Additionally, defendant and other witnesses testified that the keg was "untapped" after the visit by the police. Defendant testified that the "tap" was hidden in the garage to preclude further drinking.
*904 Other witnesses testified that beer continued to be drawn from the keg until it was empty.
The testimony surrounding Burnham's departure from the party also varied. Defendant testified that she was assured that Burnham was not driving home, but was being driven home by another individual. Defendant had trouble identifying the various individuals who had attended the party and who agreed to ensure Burnham's safe return home. Other witnesses alleged that defendant turned the lights on and off and told everyone to leave the home, in such a manner that staying overnight at the residence was not an option. Another witness testified that defendant implored Burnham to stay the night at her home, but Burnham essentially "fooled" defendant into believing that he was capable of driving. Nonetheless, Burnham got into his cargo van with five other individuals, including plaintiff. There were only two seats in the van, one for the driver and one for the front seat passenger. The remaining area of the van was open and contained tires and tools. The four passengers, including plaintiff, lay or sat in the back while Burnham drove them home. Unfortunately, the front seat passenger was obnoxious. There was frequent yelling and manipulation of the radio between the front seat passenger and Burnham. The back seat passengers yelled at Burnham to calm down and slow down because the van was traveling at a high rate of speed. Burnham failed to negotiate a slight curve in a gravel road and drove the van into a tree. Plaintiff was injured by the tires that were in the vehicle. When the police arrived on the scene, they found mushrooms near the van. Later testing of the mushrooms revealed that they had not been chemically altered, but were plain, ordinary mushrooms. The occupants of the van, for some unknown reason, hid the tires away from the scene of the accident.
The police were never able to determine why the tires were moved.
Before the commencement of trial, plaintiff's counsel sought to exclude evidence of plaintiff's drug and alcohol use before the day of the accident. Additionally, plaintiff sought to exclude allegations that police officers were negligent in failing to arrest Burnham following their determination that he was intoxicated and in possession of drug paraphernalia in his van. The trial court did not exclude evidence of plaintiff's prior use, but did conclude that defendant would not be allowed to argue the negligence of police. Also, just before trial, plaintiff wished to add an allegation that defendant committed negligence for violating a local city ordinance. The trial court granted plaintiff's request, but refused to allow defendant to introduce her acquittal of a citation. Following an acrimonious trial, the jury concluded that defendant was nineteen percent negligent, Burnham was twenty-eight percent negligent, and plaintiff was fifty-three percent negligent, thereby precluding recovery.
On appeal, plaintiff raises various claims of error as grounds for a new trial. We conclude that the cumulative effect of errors requires reversal and remand for a new trial. Haynes v. Seller, 16 Mich.App. 98, 103, 167 N.W.2d 819 (1969) ("Although one of several incidents or errors, standing alone, may be disregarded as harmless error, it is still possible that when considered in toto they accumulate such a cumulative prejudice that they may require a reversal.").
Plaintiff argues that the trial court erred in applying and instructing the jury regarding the impairment defense. We agree. MCL 600.2955a provides, in relevant part:
(1) It is an absolute defense in an action for the death of an individual or *905 for injury to a person or property that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and as a result of that impaired ability, the individual was 50% or more the cause of the accident or event that resulted in the death or injury. If the individual described in this subsection was less than 50% the cause of the accident or event, an award of damages shall be reduced by that percentage.
Issues of statutory construction present questions of law and receive review de novo. Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998). The primary goal of statutory interpretation is to give effect to the intent of the Legislature. In re MCI Telecommunications Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). This determination is accomplished by reviewing the plain language of the statute itself. Id. If the statutory language is unambiguous, it is presumed that the Legislature intended the clearly expressed meaning, and judicial construction is neither required nor permitted. DiBenedetto v. West Shore Hosp., 461 Mich. 394, 402, 605 N.W.2d 300 (2000). Only when the statutory language is ambiguous may we look outside the statute to ascertain the Legislature's intent. Id. We may depart from a strict literal interpretation of a statute that is inconsistent with the purposes and policies underlying the provision and would lead to absurd and unjust results. Albright v. Portage, 188 Mich.App. 342, 350, n. 7, 470 N.W.2d 657 (1991).
In the present case, the alleged negligence committed by defendant was the violation of state and local law in providing alcohol to minors.[4] Specifically, plaintiff presented evidence, if deemed credible, that defendant made alcohol accessible to minors, knew that minors were consuming the alcohol, learned through the police of the impairment of an underage drinker, Burnham, and failed to take adequate measures to prevent further inebriation. Accordingly, defendant seeks to benefit from the impairment defense when the alleged negligence was providing the means of impairment to underage minors. While the statute itself provides that the defense of impairment is "absolute" and applies "in an action for the death of an individual or for injury to a person or property," we decline to apply the statute in this personal injury action where defendant allegedly created the condition of impairment of both driver Burnham and plaintiff as well as other party attendees. It would be absurd to allow the defense of impairment to an individual who caused or created the impairment of the injured person. Albright, supra. Accordingly, defendant's contention that the statute applies in the present case is without merit.[5]
*906 Plaintiff also argues that the trial court erred in failing to strike the testimony defense counsel elicited from the plaintiff regarding her percentage of fault. We agree.[6] A jury determines the outcome of a case, and a witness is not permitted to tell the jury how to decide the case. Carson, Fischer, Potts & Hyman v. Hyman, 220 Mich.App. 116, 122-123, 559 N.W.2d 54 (1996). "`A witness is prohibited from opining on the issue of a party's negligence or nonnegligence, capacity or noncapacity to execute a will or deed, simple versus gross negligence, the criminal responsibility of an accused, or [the accused's] guilt or innocence.'" Id. at 123, 559 N.W.2d 54 quoting People v. Drossart, 99 Mich.App. 66, 79-80, 297 N.W.2d 863 (1980). It is error to allow the witness to give the witness' own opinion or interpretation of the facts because the opinion testimony invades the province of the jury. Carson, supra at 123, 559 N.W.2d 54. Case law provides that the inquiry by defense counsel is prohibited. A witness is not to interpret the facts and determine contributory negligence because such opinion testimony invades the province of the jury. Carson, supra.[7] Accordingly, the trial court's admission of this testimony was improper.
Plaintiff also argues that the trial court erred in failing to cure the violation of plaintiff's substantial rights when defense counsel improperly referred to a fee agreement between plaintiff and her counsel and improperly elicited testimony from police officers that had been excluded by the trial court. We conclude that the outcome of this issue, coupled with other errors regarding fault and statutory application, warrant a new trial. "When reviewing asserted improper comments by an attorney, we first determine whether the attorney's action was error and, if it was, whether the error requires reversal." Kubisz v. Cadillac Gage Textron, Inc., 236 Mich.App. 629, 638, 601 N.W.2d 160 (1999). Unless the attorney's comments indicate a deliberate course of conduct designed to prevent a fair and impartial trial, there is no cause for reversal. Id. Reversal is required where prejudicial statements are made that reflect a studied attempt to inflame the jury or deflect the jury's attention from the issues involved. Id. In the present case, there was no evidence introduced *907 regarding any fee agreement between plaintiff and her counsel. Despite the lack of an evidentiary basis, defense counsel noted that plaintiff requested in excess of $2 million in damages with one-third of that amount to plaintiff's counsel. On appeal, defendant concedes that the argument was improper and fails to offer any proper purpose for referencing the fee before the jury.[8] While we cannot conclude that the statement was a studied attempt to inflame the jury, arguably it was elicited to detract the jury from the issues of fault and negligence. Furthermore, defense counsel was on notice, before trial, that the negligence of police officers was not an issue at trial. Despite the prior notice that such testimony was not admissible, defense counsel elicited from the police testimony regarding whether Burnham could have or should have been arrested following police contact at the senior citizen complex. Plaintiff's counsel objected to the introduction of the evidence. The trial court merely overruled the objection without commenting on any reversal of the prior ruling or whether the questioning was somehow outside the bounds of the prior ruling. The testimony elicited by defense counsel was outside the scope of the initial ruling. It appears that the testimony was introduced to deflect the jury's attention from the issue at hand, that being any liability of defendant. Accordingly, defense counsel's improper conduct and introduction of evidence outside the scope of the trial court's ruling served to deflect the jury's attention from the issues at hand and warrants a new trial in light of the totality of errors in the case.[9]
Reversed and remanded for a new trial. We do not retain jurisdiction.
McDONALD, J., concurred.
*908 ZAHRA, P.J. (dissenting).
I respectfully dissent. I disagree with the majority's conclusion that the impairment defense statute, M.C.L. § 600.2955a, should be ignored because its application in this case renders an absurd or unjust result. I conclude that the majority has impermissibly utilized the "absurd or unjust result" method of statutory avoidance to substitute its judgment for that of the Legislature. I also disagree with the majority's conclusion that the trial court erred in failing to strike plaintiff's testimony regarding her percentage of fault. Finally, I do not conclude that the cumulative effect of the remaining errors alleged in this case warrants setting aside the judgment rendered below and ordering a new trial.
I do not subscribe to a method of statutory construction that allows deviation from the express language of a statute merely because a reviewing court may conclude that application of the statute renders an absurd or unjust result. People v. McIntire, 461 Mich. 147, 155-156, n. 2, 599 N.W.2d 102 (1999) (explaining that departure from the literal construction of a statute where application may render an absurd or unjust result invites impermissible judicial law making). To the extent this method of statutory avoidance remains viable after our Supreme Court's condemnation of it in McIntire, application of the impairment defense statute to this case is neither absurd nor unjust.
The impairment defense statute was enacted as part of the tort reform package of 1996. In reforming our state's tort system, our Legislature enacted laws that promote personal responsibility for one's conduct. While both plaintiff and Burnham, the intoxicated driver of the van in which plaintiff was injured, were not legally permitted to consume alcohol, they were adults (over the age of eighteen) at the time of this accident. Certain duties attach to a person who reaches the age of majority. The most obvious duty attaching to the legal status of adulthood is the duty to obey the laws of the land. Failure to act within the law will result in the imposition of adult sanctions. I do not conclude that it is absurd for the Legislature to enact a law that prohibits an adult from bringing suit for injuries that are the result of that adult's illegal activities. This is the result reached in this case if the impairment defense is applied. Both plaintiff and Burnham knew or should have known they were precluded by law from consuming alcohol or illegal drugs.
It is also not absurd that this defense applies even where the illegal conduct is facilitated by the alleged tortfeasor. Rather, it is a policy choice made by the Legislature. Principles of separation of powers preclude us from rendering the Legislature's action void merely because we disagree with the result of its application. Tyler v. Livonia Public Schools, 459 Mich. 382, 393, n. 10, 590 N.W.2d 560 (1999) (providing: "Our role as members of the judiciary is not to determine whether there is a `more proper way,' that is, to engage in judicial legislation, but is rather to determine the way that was in fact chosen by the Legislature. It is the Legislature, not we, who are the people's representatives and authorized to decide public policy matters...."). For these reasons, I conclude that the absurd or unjust result method of statutory avoidance has no application to the present case.
I also disagree with the majority's conclusion that the trial court erred in failing to strike plaintiff's testimony regarding her percentage of fault. The trial court was never asked to strike this testimony. Plaintiff's counsel failed to preserve this issue with a proper objection. Thus, appellate review is waived. We may review *909 unpreserved error where manifest injustice results from our failure to review the issue. Winters v. Dalton, 207 Mich.App. 76, 79, 523 N.W.2d 636 (1994). However, I conclude no manifest injustice results from our failure to review this claim of unpreserved error. When defense counsel entered this area of questioning, plaintiff's counsel asserted a general objection, without offering an evidentiary basis for the objection. The trial court asked defense counsel to rephrase the question. The question was then restated, without objection from plaintiff's counsel. Plaintiff's counsel was keenly aware of the sensitive nature of the questioning and consciously chose not to object to it. Under these circumstances we should conclude plaintiff's counsel chose not to pursue his objection as a matter of trial strategy. It is improper for this Court to find manifest injustice from an unpreserved error where it appears clear from the record that the decision not to preserve the issue was a matter of trial strategy.[1]
Finally, having rejected the above two arguments, I cannot conclude that the cumulative effect of plaintiff's remaining claims of error is sufficient to set aside the verdict rendered in this case. I would affirm.
NOTES
[1] Defendant and her son testified that the keg was a quarter barrel of beer, while other witnesses testified that the keg was a half barrel of beer.
[2] The witnesses' testimony regarding defendant's knowledge of the substance and alcohol use varied. Defendant claimed that she did not see underage individuals consuming alcohol and that soda pop was available for those individuals. Additionally, defendant claimed that marijuana use did not occur in her presence, and she did not smell marijuana. Other witnesses concurred that marijuana use did not occur in defendant's presence. However, plaintiff and Jennifer Cassavoy testified that defendant was aware of drug and alcohol use by minors that occurred openly in the home.
[3] Defendant testified that the $5 was not charged for beer, but was to cover the costs of the extensive amount of food purchased for the party and for the band.
[4] Admittedly, plaintiff, being over the age of eighteen, can be characterized as an adult. However, for purposes of consumption of alcoholic liquor, the Legislature has determined that she is underage and cannot be furnished alcohol. At the time pertinent to this action and before its repeal by 1998 PA 58, M.C.L. § 436.33(1) provided: "Alcoholic liquor shall not be sold or furnished to a person unless the person has attained 21 years of age." MCL 436.1701, enacted with 1998 PA 58, provides: Alcoholic liquor shall not be sold or furnished to a minor. MCL 436.1109(3) defines minor as "a person less than 21 years of age." Any modification to the age of majority in the context of alcoholic liquor should be directed to the Legislature.
[5] The parties dispute whether the statute applies on the basis of the Legislature's failure to define the terms "cause" and "event" within the statute. Specifically, plaintiff argues that she did not suffer an impairment that "caused" the accident or event, and plaintiff's decision to accept a ride from Burnham is an "act" as opposed to an "event." Defendant contends that plaintiff's decision to accept a ride constitutes an "event" that caused her injuries. In light of our disposition of this issue, we need not address the parties' exercise in semantics.
[6] MRE 103(a)(1) provides that a party opposing the admission of evidence must timely object at trial and specify the same ground for objection that is asserted on appeal. See also In re Weiss, 224 Mich.App. 37, 39, 568 N.W.2d 336 (1997). To be timely, an objection should be interposed between the question and answer. Id. In the present case, plaintiff's counsel did not provide an evidentiary basis for the objection, but stated that defense counsel knew that the comment was inappropriate. The trial court did not request an evidentiary basis to support the objection, but instructed defense counsel to rephrase the question. Plaintiff then estimated her fault at fifty percent. Accordingly, plaintiff did not comply with the strict rules regarding preservation. When an issue is not preserved for appellate review, we determine whether manifest injustice will result from our failure to review the issue. Winters v. Dalton, 207 Mich.App. 76, 79, 523 N.W.2d 636 (1994). The determination of what constitutes manifest injustice is contingent on the circumstances peculiar to each individual case. Van Pembrook v. Zero Mfg. Co., 146 Mich.App. 87, 94, 380 N.W.2d 60 (1985). In the present case, we conclude on the basis of [the cumulative error present in this case] that manifest injustice would occur if we did not review the issue.
[7] Indeed, when the inquiry was reversed, defense counsel objected to this type of inquiry. When plaintiff's counsel asked defendant whether she was negligent, an objection was raised.
[8] Additionally, defense counsel asked Cassavoy about her own attorney and, in response to her answer, commented that it was not a "White House intern" situation. Such commentary is ill advised, unnecessary, and merely serves to deflect the jury's attention from the issues at hand.
[9] We note that plaintiff raises other issues of alleged evidentiary error. We have concluded that a new trial is warranted and the presiding judge over the initial trial has since retired. A circuit judge is required to follow published decisions from the Court of Appeals and the Supreme Court. People v. Hunt, 171 Mich.App. 174, 180, 429 N.W.2d 824 (1988). There is no similar requirement that one circuit judge follow the decision of the other. Id. Accordingly, on remand the presiding judge is free to examine unresolved evidentiary issues anew. For example, on appeal, plaintiff contends that her prior drug and alcohol use is irrelevant and inadmissible. Plaintiff argues that the evidence was admitted to place her in a bad light. While it appears on its face that any prior drug or alcohol use has no relevance to the issue of defendant's negligence on the date in question, plaintiff, nonetheless, elicited extensive testimony from other witnesses regarding their own prior Drug use. Plaintiff cannot use the same rules of evidence as both a shield and a sword. Plaintiff also alleges that testimony regarding her boyfriend's financial wherewithal was improperly admitted. However, this testimony was elicited after plaintiff's counsel, on direct examination, introduced evidence regarding plaintiff's live-in companion and ownership of her own home. Plaintiff's counsel cannot introduce evidence then exclude cross-examination on topics introduced by plaintiff. Additionally, while the trial court held that the negligence of police was not relevant to this trial, it then allowed, for some unknown reason, defense counsel to question police regarding their options and actions. After its initial ruling regarding exclusion of police negligence, the trial court allowed plaintiff's counsel to amend the allegations to include violation of a local ordinance as a claim of negligence. We cannot conclude from the record if this additional theory was the basis for allowing admission of the officer's testimony. Rather than address these issues in a vacuum without knowing the rationale underlying the trial court's decision, we remand these issues to the trial court, which is in a better position to address the remaining evidentiary issues anew.
[1] I also conclude that the majority has misapplied the manifest injustice standard. The manifest injustice needed to ignore a litigant's failure to preserve an issue for appellate review should emanate from the claim of unpreserved error. Winters, supra. In this case, the majority finds manifest injustice, not from the fact that plaintiff testified that she was fifty percent at fault for her injuries, but from "the cumulative error present in this case." Ante, p. 906, n. 6.